By AWA KALU, SAN
In our first instalment on this topic, (Vanguard, Thursday 25th August, 2022; Vol. 39: No 9,865) we outlined the Dictionary meanings of the word ‘magic’ and it is our intention to demonstrate that the word may connote either negative or positive outcomes. In that connection, when magic is said to mean ‘any mysterious power or phenomenon which defies analysis or explanation’ or ‘the art or practice of producing illusions’, then all those who need or desire free and fair elections next year will experience crass disappointment.
Similarly, when magic is associated with ‘any supernatural art, sorcery, or necromancy’, then those who desire transparency in the electoral process will go home in tears. However, one can leap with hope when faced with a choice from the litany of definitions offered by the Collins English Thesaurus which include sorcery, wizardry, witchcraft, enchantment, black art, necromancy, conjuring, illusion, trickery, sleight of hand, legerdemain, prestidigitation, charm, power, glamour, fascination, magnetism, enchantment, allurement etc., I know that in ordinary conversation, Wizardry may be associated with a performance which is fantastic. Similarly, fascination and enchantment may arise from an admiration of something or someone.
Whether 2023 will be a magic year (in whichever way) will depend on what the supervisor general of our General Elections i.e, the Independent National Electoral Commission does, or does not do. This is because the Constitution of the Federal Republic of Nigeria 1999 as well as the Electoral Act and all other laws enabling the Independent National Electoral Commission to conduct elections, empowers the Commission to provide election outcomes that will satisfy the generality of Nigerians and even the International Community. For the avoidance of doubt, the electoral body is established by Section 153 (f) of the Constitution, and its powers are settled as shown in Section 15 of Part I of the 3rd Schedule to the Constitution. For the avoidance of doubt, the powers which define the direction of the Independent National Electoral Commission (INEC) in so far as elections are concerned include the following;
(a) organise, undertake and supervise all elections to the offices of the President and Vice-President, the Governor and Deputy Governor of a State, and to the membership of the Senate, the House of Representatives and the House of Assembly of each
State of the Federation; (b) register political parties in accordance with the provisions of this Constitution and an Act of the National Assembly; (c) monitor the organisation and operation of the political parties, including their finances, conventions, congresses and party primaries; (d) arrange for the annual examination and auditing of the funds and accounts of political parties, and publish a report on such examination and audit for public information; (e) arrange and conduct the registration of persons qualified to vote and prepare, maintain and revise the register of voters for the purpose of any election under this Constitution; (f) monitor political campaigns and provide rules and regulations which shall govern the political parties; (g) ensure that all Electoral Commissioners, Electoral and Returning Officers take and subscribe the oath of office prescribed by law; (h) delegate any of its powers to any Resident Electoral Commissioner; and (i) carry out such other functions as may be conferred upon it by an Act of the National Assembly.
A critical view of the powers listed above makes it clear as well as obvious that in so far as the powers listed above (as vested) are concerned, INEC is the important and exceptional Electoral Management Body in this Country, and the States Independent Electoral Commissions pale significantly in comparison. To enable the reader appreciate the level of responsibility placed on INEC, elections to the Offices of President and Vice-President cover the 36 States in the Federation, the Federal Capital Territory (F.C.T) as well as the 774 Local Governments in the country and spreads even to the nooks and crannies in the difficult terrains across Nigeria, and that is why elections to the Offices are held on the same day as elections to the Senate and the House of Representatives. We have already mentioned that an election is not an event, but a process, and most Courts in the World, particularly the Supreme Court of Nigeria, as well as Kenya agree. For us in Nigeria, the election process includes registration of voters (which itself is a continuous process), accreditation of such voters on the day of the election, managing the voting process, collation of the results, as well as the announcements of such results. The process also includes consultation and cooperation with security agencies to ensure the integrity of the process. It has to be borne in mind that the power which INEC has to register Political Parties relates only to doing so in accordance with the provisions of the Constitution and any Act of the National Assembly enabling it in that behalf.
Accordingly, in INDEPENDENT NATIONAL ELECTORAL COMMISSION Vs MUSA (2003) F.W.L.R (Part 145 ) 729, the Supreme Court held that “recognition of a political party is not quite the same thing as registration of a political party, while registration of a political party is quite distinct and is not the same thing as eligibility of an association to function as a political party, even though these are all interrelated aspects of the same subjects. Registration is the process of recording the existence of a political party, and it provides evidence and certification of compliance with Section 222 of the Constitution.”
Furthermore, the Apex court held that “…the power to regulate or monitor political parties relates to associations which have a recognised existence as political parties” the Court concluded that such power does not also imply any power to legislate the conditions of eligibility. The Court also illuminated, that INEC has power to deregister non-viable political parties. In light of the above, it must also be borne in mind that each power bestowed on INEC either by the Constitution or an extant Electoral Act will be construed as provided and will not be stretched beyond its boundaries.
We have deployed the term “extant Electoral Act” advisedly, on account of the fact that since the return to democratic governance in 1999, our democratic space has been regulated by several Electoral Acts. In that connection, we had a Decree in 1998 which established the framework for the general elections held in 1999. That Decree was supplanted by an Act enacted in 2001, that Act was tested in Court, in fact, at the level of the Supreme Court, in Attorney- General, Abia State Vs Attorney- General, Federation (2002) 6 NWLR (PT 763) p. 264. The Act was decapitated in the Supreme Court judgement in respect of which Kutigi JSC (as he then was) held that “The Electoral Act as a whole was a mix up, a confusion, because the National Assembly seemed to have treated its legislative powers with respect to Federal Elections as if they were co-extensive with its powers over local government elections.” To that extent, several sections of the 2001 Act were declared null and void by the Supreme Court, and so the Act became a lame duck. In consequence, a new Electoral Act was enacted in 2002, this was followed by yet another in 2006.
The most famous Electoral Act since 1999 was perhaps, the Act promulgated in 2010 which had to be amended several times, probably to accommodate shifting political exigencies. Despite the numerous amendments, there is a new Act, the one of 2022, which in all probability will be tested vigorously in the process of pre and post-election litigation.
AWA KALU, SAN
TO BE CONTINUED